Taylor Co. v. King

• Decision Date: 26 October 1887
• Citation: 34 N.W. 774,73 Iowa 153
• Parties: TAYLOR CO. v. KING AND OTHERS.
• Court: Iowa Supreme Court

73 Iowa 153

34 N.W. 774

TAYLOR CO.

v.KING AND OTHERS.

Supreme Court of Iowa.

October 26, 1887.

Appeal from district court, Adams county.

This action was brought to recover against the defendant P. C. King for alleged default made by him as treasurer of the plaintiff county. The other persons joined with him as defendants were sureties upon his official bond. The action is brought upon such bond. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant sureties appeal.G. B. Haddock, J. L. Brown, and Charles Thomas, for appellants.

L. Evans, W. W. Morseman, and J. P. Flick, for appellee.

ADAMS, C. J.

The appellant sureties claim that the bond has no validity as to them, because, as they allege, the bond was signed with conditions, and not to be delivered until the conditions should be performed; the conditions being that the signatures of other persons should be obtained, and that the persons signing the bond should qualify as the owners of property amounting in the aggregate to $65,000, which was not done. It appears, we think, from the evidence, that the appellant sureties, after signing the bond, left it with one Johnson, and one Dunlavey; that the understanding between them and Johnson and Dunlavey was that it was to be delivered only after the conditions above mentioned had been performed; that the principal in the bond, however, procured the bond from them in violation of the understanding, and presented it to the board of supervisors, who approved it; that they did so, however, without knowledge of the conditions, and without knowledge that the same had ever been deposited with Johnson and Dunlavey for any purpose.

It is conceded by the appellants that, if they had delivered the bond to the principal with the same understanding, his delivery would be a good delivery, and the appellants would be precluded from setting up the fact that the bond was signed with conditions, unless they could show that the supervisors had knowledge of the conditions, or were put upon inquiry in respect to them. The law, indeed, is well settled, at least in this state, that in such case the sureties would be deemed to have clothed the principal with apparent power to deliver the bond. Carroll Co. v. Ruggles, 69 Iowa, 275, 28 N. W. Rep. 590. But it is said that the case is different where the sureties took the precaution to put the bond into the hands of a third person. To this, however, we have to say that it appears to us that Johnson and Dunlavey were the agents solely of the sureties, and, if the bond was delivered in violation of the conditions upon which the sureties signed it, it was the fault of their own agents. The sureties selected untrustworthy persons, and the loss should not fall upon the county, who had had nothing to do with these persons.

If the supervisors had received the bond from Johnson and Dunlavey, it may be that they would have been charged with the duty of discovering what their powers were. But they received the bond from the very person who might be expected to deliver it, and who had the apparent power to deliver it. If we should sustain the appellants in their defense, no such bond could be safely accepted by a board of supervisors, though presented by the principal, until they had brought all the sureties before them, and ascertained from them upon what conditions, if any, they had signed the bond, and if upon any whether they had been performed.

In Carroll Co. v. Ruggles, above cited, this court said that the board of supervisors should not be required to compel the attendance of the sureties to official bonds to ascertain whether their names were affixed with conditions; that they do not, indeed, have the power to compel their attendance; and that, the time and place being fixed by law for the approval of such bonds, the board ought not to be expected to travel over the county to seek out and interview the sureties upon the subject of their obligations.

The appellants rely upon Daniels v. Gower, 54 Iowa, 319, 3 N. W. Rep. 424, and 6 N. W. Rep. 525. That was an action upon a non-negotiable promissory note, which had been deposited by the surety with a third person, and which afterwards was obtained by the principal, and delivered by him in contravention of the terms imposed by the surety. It was held that the surety was not bound. But this...